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EXHIBIT A

Case 1:04-cv-00798-PLF Document 152-3 Filed 04/08/10 Page 2 of 1 1

UMP

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KEVIN V. RYAN (CSBN 1 18321) United States Attorney

ROSS W. NADEL (CSBN 87940) Chief, Criminal Division F H L

MARTHA BOERSCH (CSBN 126569) J , ,
JONATHAN R. HOWDEN (CSBN 97022) - AN 3 [M14
PETER AXELROD (CSBN 190843)
Assistant United States Attorneys WIEKING

momma COURT

I I-Hulrilbl cum;

HALLIE A. MITCHELL (CSBN 210020) "STRICT OF CALM-'OFiNIA
Trial Attorney, U.S. Department of Justice

450 Golden Gate Avenue, Box 36055

San Francisco, California 94102 Telephone: (415) 436-7200

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

UNITED STATES OF AMERICA, ) No. CR 00-0284 M] J

) Plaintiff, ) MOTION IN LIMINE TO ADMIT
) STATEMENTS OF YULIA v. ) TYMOSHENKO AS CO-CONSPIRATOR

) STATEMENTS PAVEL LAZARENKO, )
) Date: February 6, 2004 Defendant. ) Time: 9:30 am

)

Courtroom: Hon. Martin J. Jenkins

The United States hereby moves in limine to admit statements made by Yulia

Tymoshenko, an un-indicted co-conspirator, during the course of and in the furtherance of the

conspiracy and the scheme to defraud.

Case 1:04-cv-00798-PLF Document 152-3 Filed 04/08/10 Page 3 of 1 1

ARGUMENT

I. THE STATEMENTS OF YULIA TYMOSHENKO, A NON-TESTIFYING CO

CONSPIRATOR. ARE ADMISSIBLE IN EVIDENCE UNDER FED. R. EV]D. 801 (d)(2)

A. Legal Authority

Under Fed. R. Evid. 801(d)(2)(E), "a statement by a coconspirator of a party during the

course of and in furtherance of the conspiracy' is not hearsay. United States v. Crespo de Llano,

838 F. 2d 1006, 1017 (9th Cir. 1987). To admit statements of a coconspirator against a

defendant, there the government need only establish by a preponderance of the evidence that (1)

the declarant and the defendant were members of a conspiracy; and (2) the statements were made

during and in furtherance of the conspiracy. Bogiaij/ v. United States, 483 U.S. 171, 175

(1987). Once a conspiracy is shown, the prosecution need only present slight evidence

connecting the defendant to the conspiracy. United States v. Mason, 658 F. 2d 1263, 1269 (9th

Cir. 1981). Under Bourjaily, the requirements of Rule 801(d)(2)(E) and the confrontation clause

of the Sixth Amendment are identical. 483 U.S. at 182-84.

A conspiracy need not be charged in order to allow the introduction of a co-conspirator's
statement under the rule. United States v. Portac, Inc., 869 F. 2d 1288, 1294 (9th Cir. 1989).
Participation as an aider and abettor is sufficient, as a concert of action creates a conspiracy for
purposes of the evidentiary rule. I_d. gag also, United States v. LeFever, 798 F. 2d 977, 983

(7th Cir. 1986); United States v. Reynolds, 919 F. 2d 435, 439 (7th Cir. 1990); and
United States

v. Blankenship, 954 F. 2d 1224, 1231 (6th Cir. 1992). Moreover, evidence against one

defendant in a conspiracy can properly be considered against another defendant given evidence

linking each to the conspiracy. United States v. Nixon, 918 F. 2d 895, 906 (1 1th Cir. 1990).

In determining whether a statement was made "in furtherance of a conspiracy, the focus

is not on its actual effect in advancing the goals of the conspiracy, but on the declarant's intent in

making the statement. United States v. Zavala-Sierra, 853 F.2d 1512, 1516 (9th Cir. 1988).

Thus,

When a declarant seek[s] to induce [the listener] to deal with the conspirators or in any other way to
cooperate or assist in_ achieving the conspirator's common objective, the declaration may be admissible
[as a co-conspirator statement].

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR
STATEMENTS [CR 00-0284-MJJ] 2

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Statements concerning activities of the conspiracy, including future plans, also may become admissible
when made with such intent.

United States v. Foster, 71 1 F. 2d 871, 880 (9th Cir. 1983). A statement is "in furtherance" of a

conspiracy if it furthers the common objectives of the conspiracy or sets in motion transactions

that are an integral part of the conspiracy. United States v. Laygon, 720 F. 2d 548, 556-57 (9th

Cir. 1983), cert, denied, 465 U.S. 1069; 104 S. Ct. 1423; 79 L.Ed. 2d 748 (1984). Statements

made to induce enlistment or further participation in the group's activities are considered to be

"in furtherance" of the conspiracy. United States v. Dorn, 561 F. 2d 1252, 1256-57 (7th Cir.

1977) (per curiam), overruled on other grounds, United States v. Read, 658 F.2d 1225, 1236, n.

6 (7th Cir. 1981). Likewise, statements made to prompt further action on the part of

conspirators are admissible under 801(d)(2)(E), United States v. Dendall, 665 F.2d 126, 133 (7th

Cir. 1981), cert, denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed. 2d 140 (1982), as are those

made to "reassure" members of a conspiracy's continued existence. United States v. Mason, 658

F.2d 1263, 1270 (9th Cir. 1981). Statements made to allay a co-conspirator's fears are

admissible. Eubanks, 591 F.2d at 521, n. 7. Most importantly, statements made to keep

co-conspirators abreast of an ongoing conspiracy's activities satisfy the "in furtherance of

requirement. United States v. Eaglin, 571 F. 2d 1069, 1083 Cir. 1977), cert, denied , 435

U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497 (1978); United States v. Moody, 778 F.2d at 1382

(statements made to "higher ups" of the group are "in furtherance"); see also, Crespo de Llano,

830 F.2d at 1543: (Statements are in furtherance of the conspiracy if they are made to keep a

person abreast of the conspirator's activities, to induce continued participation in the conspiracy,

or to allay fears.)

A trial court has discretion to vary the order of proof in admitting a co-conspirator's

statement; the statement may be admitted prior to the presentation of independent evidence of the

conspiracy. United States v. Loya, 807 F. 2d 1483, 1490 (9th Cir. 1987) and United States v. Arbelaez,
719 F. 2d, 1453, 1460 (9th Cir. 1983).

B. The Charged Congoirg and the Scheme to Defraud

Count One of the Second Superseding Indictment alleges a conspiracy to launder money

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS [CR 00-0284-MII] 3

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among the defendant, Peter Kiritchenko, and others between January 1992 and June 1999. The

indictment generally alleges that the defendant and others conspired to launder the proceeds of

extortion and fraud through various bank accounts, including accounts in the United States. The

indictment alleges conspiracy that as part of the conspiracy Lazarenko, as a government official

in Ukraine, would engage in various acts of extortion and fraud, and would receive funds that

had been stolen, converted and taken by fraud, and would transfer the proceeds of this activity

into bank accounts in Switzerland, Antigua, Poland, the United States, and elsewhere, and that he

induced Kiritchenko to assist Lazarenko to open bank accounts in Switzerland, Antigua, Poland,

and the United States, and to transfer the proceeds of fraud and extortion into and out of these

bank accounts in an effort to conceal and disguise the nature, location, source, ownership, and

control of the proceeds of the specified unlawful activity. The conspiracy count incorporates the

wire fraud scheme to defraud, which more specifically alleges that the defendant received money

and property from individuals and businesses on behalf of whom he was exercising his official

authority.

In particular, with respect to Ms. Tymoshenko, the indictment alleges that in
approximately September 1995, Lazarenko, as First Vice Prime Minister of Ukraine, became
responsible for the energy section in the Ukrainian government, and that in approximately
December 1995, a Ukrainian company called United Energy Systems of Ukraine ("UESU"),
which was created on November 20, 1995 by Yulia Tymoshenko, an associate of Lazarenko 's,
was designated by the Ukrainian government as one of several companies to supply natural gas to
Ukraine. UESU was given the authority to distribute natural gas to the Dnepropetrovsk region of
Ukraine. From approximately December 1995 until sometime in 1997, UESU received
deliveries of natural gas from RAO Gazprom pursuant to contracts entered on December 29,
1995 and December 31, 1996 between RAO Gazprom, UESU, and others. Beginning in
approximately January 1996, UESU fraudulently conveyed title to the imported natural gas to
United Energy International, Ltd. ("UEIL"), an 85% shareholder of UESU that was created on
October 17, 1995, in London, England by a Turkish national named Ercument Aksoy, at the
direction of Yulia Tymoshenko, and fraudulently diverted to foreign bank accounts belonging to
UEIL the payments from Ukrainian customers for the natural gas delivered by UESU.

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR
STATEMENTS [CR O0-0284-MJJ] 4

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The indictment further alleges that between April 8, 1996 and December 31, 1996, rather

than pay RAO Gazprom for the delivered gas with the money that had been transferred to UEIL,

UEIL transferred approximately $140,000,000 to Somolli Enterprises, a Cypriot company that

was registered in Cyprus on October 8, 1992, and was controlled by Yulia Tymoshenko and

others. Between April 1996 and June 1997, Somolli Enterprises and UESU transferred a total of

approximately $97,000,000 into accounts that were controlled by Kiritchenko in Switzerland,

Poland, and the United States, including transfers totaling approximately $13,000,000 to bank

accounts in the Northern District of California. Between February of 1996 and September of 1997, the
money from Somolli, along with other funds, totaling more than

transferred from Kiritchenko's accounts into accounts controlled by Lazarenko in Switzerland

and Antigua. Thereafter, the indictment alleges, Lazarenko transferred portions of these funds

from Switzerland into bank accounts in the Northern District of California, including two

transfers of $14,000,000 each on August 1, 1997.

Finally, part of the conspiracy includes the scheme to defraud alleged in Paragraphs 32 to

38 of the indictment, which allege that the defendant, while a government official in Ukraine,

exercised his official authority and influence in favor of, and to induce the grant of certain

government benefits and privileges to Yulia Tymoshenko's businesses, among others, by taking

certain official action, that between 1993 and 1997 he received over $200,000,000 from various

companies, including Yulia Tymoshenko's businesses Somolli Enterprises ($84,000,000), UEIL

($65,000,000), and UESU ($13,000,000). The indictment alleges that as a result of these actions,

the people and government of Ukraine were deprived of money and of the defendant's right to

honest services.

C. Tvmoshenko's Statements and Background

The United States will seek to admit as coconspirator statements under Fed. R. 801(d)(2)

the following statements of Yulia Tymoshenko, and reserves the right to offer additional

statements if the evidence warrants:

1. L/moshenko statements to Neil Flieger. Eric Hoffman, Marika Jung and

Vitaly Garber

Vitaly Garber and Marika Jurach work for a company called Garber International

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS
[CR 00-0284-MJJ]

Case 1:04-cv-00798-PLF Document 152-3 Filed 04/08/10 Page 7 of 1 1

Associates. In late 1996 their company was retained by UESU to "assist UESU in combatting

allegations in the Western press that it was tied through corniption with politicians in Ukraine,

principally to Pavel Ivanovich Lazarenko, the then-Prime Minister of Ukraine." fig Garber 302,

X000088. Yulia Tymoshenko was his principal contact at UESU, and she explained to Garber

that UESU was participating in a new gas distribution system set up by Lazarenko and. Q. She

told Garber she wanted to assist LaZarenkO's political career and that part of what UESU was

hiring Garber to do was to get favorable publicity for Lazarenko.

Garber then hired Edelman Public relations in Washington, D.C. to represent UESU.

Neil Flieger and Eric Hoffman worked for Edelman and had numerous meetings with Yulia

Tymoshenko. Flieger and Hoffman will testify about statements she made to them about the

work they were doing for Lazarenko, which UESU was paying for.

These statements are in furtherance of the conspiracy because they were made "to induce

[the listener] to deal with the conspirators or in any other way to cooperate or assist in achieving

the conspirator's common objective," Foster, 711 F. 2d at 880, which in this case was to ensure

that the defendant could maintain his political position so that he could continue to render
official

assistance to UESU in exchange for the money and financial assistance he was getting from

UESU.

2. Tymoshenko Statements to Serif Ercument Aksoy, Gravets

Tymoshenko also made a number of statements to Serif Ercument Aksoy and Oleksander

Gravets that the United States will seek to introduce as co-conspirator statements. Serif

Ercument Aksoy was the nominal head of United Energy International ("UEIL") and worked

with Tymoshenko in that business. Oleksandr Gravets was one of the founding members of

UESU and worked with Tymoshenko in that business. These statements primarily concern the

business operations of and relations between UEIL, UESU, and Somolli Enterprises during the

course of the conspiracy. Some of the statements concern the defendant's relationship to UESU

and his role in the Ukrainian gas market. These statements are in furtherance of the conspiracy

and the scheme to defraud because they further the common objectives of the conspiracy and

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS [CR 00-
0284-MJJ] 6

Case 1:04-cv-00798-PLF Document 152-3 Filed 04/08/10 Page 8 of 1 1

scheme and sets in motion transactions that were an integral part of the conspiracy, that is, they

were made to further the goal of concealing and disguising the source, location, ownership and

control of the funds that were paid to the defendant, and they were made to further the scheme to

defraud by enlisting Aksoy and Gravets in that scheme and prompting further action on their part.

Layton, 720 F. 2d at 556-57; Dendall, 665 F.2d at 133.

The United States also seeks to introduce Tyrnoshenko's explanation to Gravets in Israel

about the payments made to the defendant. These statements were in furtherance of the

conspiracy because they were made to reassure Gravets, Mason, 658 F.2d at 170, and to allay his

fears. Eubanks, 591 F.2d at 521, n. 7. Furthermore, the statements wer made to induce Aksoy

and Gravets to deal with Tymoshenko and to cooperate or assist in achieving the conspiracy's

common objective, Foster, 71 1 F. 2d at 880,

3. Tymoshenko Statements to Andreas Petrou

Andreas Petrou was a nominal director of Somolli Enterprises, and it was through Petrou

that Tymoshenko, Gravets, and Oleksandr Tymoshenko set up Somolli Enterprises in Cyprus.

The United States seeks to introduce Tymoshenko's statements to Petrou as co-conspirator

statements made to further the common goals of the conspiracy, that is to set up a corporate

structure designed to conceal and disguise the location, source, and ownership of funds paid to

the defendant. M, 720 F. 2d at 556-57. Furthennore, the statements were made to

induce Petrou to deal with Tyrnoshenko and to cooperate or assist in achieving the conspiracy's

common objective. Foster, 711 F. 2d at 880.

4. Tyrnoshenko Statements to Andrei Vavilov and other Russian Witnesses

Andrei Vavilov was the Russian Deputy Minister of Finance in 1996 and he was a

signatory on a contract between the Russian Ministry of Finance, the Russian Ministry of

Defense, RAO Gazprom, UESU, and UEIL, pursuant to which UESU agreed to deliver goods to

the Russian Ministry of Defense to extinguish its debt to RAO Gazprom for prior deliveries of

gas to Ukraine. Vavilov met with Tyrnoshenko in Moscow, and during that meeting she

explained the debt to Vavilov and the reasons why they wanted to execute the agreement.

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR
STATEMENTS [CR 00-0284-MJJ] 7

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Tymoshenko's statements to Vavilov are in furtherance of the conspiracy because the statements

were made to induce Vavilov into action that would further the common objectives of the

conspiracy, that is, to conceal and disguise the source of the funds that had been paid to the

defendant and to advance the common goal of the conspiracy, which was to ensure that in

exchange for his official actions, the defendant would receive funds from Tymoshenko and her

companies and that his receipt of funds would not be discovered.

5. Tvmoshenko Statements to Kleshma and Shostak

Anatoliy Kleshnya and Anatoly Shostak worked at the State Committee for Material

Resources of Ukraine. Each testified that the defendant instructed them to enter a contract with

UESU for UESU to sell material goods to the government of Ukraine for its reserves. Each will

testify about conversations they had with Yulia Tymoshenko regarding the pricing of the goods

and the attempts to negotiate a contract. Ultimately no contract was entered because they

believed that UESU was overcharging the government for the goods.

The government will introduce these statements either as co-conspirator statements or as

non-hearsay because they are not admitted for the truth of the matter. These statements were in

furtherance of the conspiracy because they advanced a common goal of the conspiracy — to use

the defendant's official position to garner benefits for UESU, in exchange for which the

defendant received a portion of UESU' s profits. Furthermore, the statements are not hearsay,

because they are not admitted for the truth of the matter asserted.

6. Otherlvmoshenko Statements

There may be other statements of Tymoshenko that the United States will seek to admit if

they are in furtherance of the conspiracy.

D. The Evidence of a Conspiracy

Besides the statements themselves, which, of course, the Court can consider as evidence

of the conspiracy, the United States will also introduce a variety of documents and other witness

testimony that will demonstrate the existence of a conspiracy and Yulia Tymoshenko's

participation in that conspiracy. These records will include bank records from Switzerland, the

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS [CR 00-0284-MJJ] 8

Case 1:04-cv-00798-PLF Document 152-3 Filed 04/08/10 Page 10 of 11

United States, England, Cyprus and other locations that demonstrate the payment of hundreds of

millions of dollars to the defendant by companies controlled by Tymoshenko. It will also include

documents from Cyprus, England and Ukraine demonstrating the formation and establishment of

bank accounts for of Somolli Enterprises, UESU, and UEIL. The evidence will also include

statements of other witnesses describing the relationship between the defendant and UESU and

UEIL, testimony of the Swiss bankers about what the defendant told them about money he was

receiving from UESU (that it was "commissions"), and Peter Kiritchenko's statements about the

defendant's relationship to Tymoshenko and payments that were made by Tymoshenko to the

defendant. The evidence will also include official records from Ukraine showing the official

action the defendant took for the benefit of UESU or companies controlled by Tymoshenko, such

as Directive 100 and the $200,000,000 guarantee. Finally, it will also include evidence of

correspondence between RAO Gazprom and the defendant, and Tymoshenko and RAO

Gazprom, regarding UESU's debts for the gas delivered in 1996.

CONCLUSION

For the foregoing reasons and based on the record herein, the United States respectfully

moves to admit statements of Yulia Tymoshenko made in furtherance of the conspiracy and

scheme to defraud.

DATED: January 30, 2004 Respectfully submitted,

KEVIN V. RYAN United Stzggs Attorney

JONATHAN HOWDEN PETER AXELROD Assistant United States Attorneys

HALLIE MITCHELL Trial Attorney, U.S. Department of Justice

UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR
STATEMENTS [CR O0-0284-MJJ] 9

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Full text of "Tymoshenko implicated in crimes by USA Federal Prosecutor"

See other formats